U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

88–041 PDF 2014

PENALTIES 

HEARING 

BEFORE THE

OVER-CRIMINALIZATION TASK FORCE OF 2014 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

MAY 30, 2014 

Serial No. 113–113 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

OVER-CRIMINALIZATION TASK FORCE OF 2014 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

SPENCER BACHUS, Alabama 

RAU ́ L LABRADOR, Idaho 

GEORGE HOLDING, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

JERROLD NADLER, New York 

STEVE COHEN, Tennessee 

KAREN BASS, California 

HAKEEM JEFFRIES, New York 

CAROLINE LYNCH, Chief Counsel 
(III) 

C O N T E N T S 

MAY 30, 2014 

Page 

OPENING STATEMENTS 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Vice-Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law .................................................................................. 1 

The Honorable George Holding, a Representative in Congress from the State 

of North Carolina, and Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law .................................................................................. 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Over-Criminalization Task 

Force of 2014 ........................................................................................................ 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 10 

WITNESSES 

William G. Otis, Adjunct Professor of Law, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 13 

Eric Evenson, National Association of Assistant United States Attorneys 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Marc Levin, Esq., Policy Director, Right on Crime Initiative at the Texas 

Public Policy Foundation 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

Bryan Stevenson, Professor of Clinical Law, New York University School 

of Law, Founder and Executive Director, Equal Justice Initiative 

Oral Testimony ..................................................................................................... 45 

Prepared Statement ............................................................................................. 47 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 ................................................................... 3 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 8 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, OverCriminalization Task Force of 2014 ................................................................... 93 

Material submitted by the Honorable Spencer Bachus, a Representative in 

Congress from the State of Alabama, and Member, Over-Criminalization 

Task Force of 2014 ............................................................................................... 160 
Page

IV 

Additional Material submitted by the Honorable Spencer Bachus, a Representative in Congress from the State of Alabama, and Member, OverCriminalization Task Force of 2014 ................................................................... 162 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Supplemental Material submitted by Eric Evenson, National Association of 

Assistant United States Attorneys ..................................................................... 168 

Material submitted by William G. Otis, Adjunct Professor of Law, Georgetown 

University Law Center ........................................................................................ 171 

Letter to the Honorable Harry Reid, Majority Leader, and the Honorable 

Mitch McConnell, Minority Leader, United States Senate .............................. 172 

Questions for the Record submitted to the Witnesses .......................................... 176 
(1) 

PENALTIES 

FRIDAY, MAY 30, 2014 

HOUSE OF REPRESENTATIVES

OVER-CRIMINALIZATION TASK FORCE OF 2014 

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Task Force met, pursuant to call, at 9:01 a.m., in room 2237, 

Rayburn House Office Building, the Honorable Louie Gohmert 

(Vice-Chairman of the Subcommittee) presiding. 

Present: Representatives Gohmert, Goodlatte, Bachus, Holding, 

Scott, Conyers, Cohen, and Jeffries. 

Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 

Church, Clerk; and (Minority) Ron LeGrand, Counsel. 

Mr. GOHMERT. The Over-Criminalization Task Force hearing will 

come to order. Without objection, the Chair is authorized to declare 

recesses of the Task Force at any time. 

We will welcome our witnesses today. 

Mr. William G. ‘‘Bill’’ Otis an adjunct professor at Georgetown 

Law. He has held a number of positions in the Federal Government: Chief of the Appellate Division, U.S. Attorney’s Office for the 

Eastern District of Virginia, Counselor to the Administrator, Drug 

Enforcement Administration, and Special Counsel to President 

George H.W. Bush. He has written several op-ed pieces on criminal 

law for USA Today, Forbes, The Washington Post, and U.S. News 

& World Report; has been interviewed and quoted by The New 

York Times and The Wall Street Journal; has testified as an expert 

witness before Congress; has appeared on various network programs and as a contributor to the blogs Crime and Consequences 

and Power Line. Mr. Otis obtained his undergraduate degree at the 

University of North Carolina and his juris doctorate at Stanford 

Law School. 

The Chair will now recognize the gentleman from North Carolina, Mr. Holding, to introduce our second witness. 

Mr. HOLDING. Mr. Chairman, it is my pleasure today to introduce a leader in this battle fighting against drug crimes, former 

Assistant United States Eric Evenson, who is here today. Mr. 

Evenson retired December of last year after more than two decades 

as a Federal prosecutor and after significant experience as a prosecutor in the State courts of North Carolina. He served as an assistant district attorney for a number of years in both Greensboro 

and Durham. His perspective as a frontline Federal prosecutor I 
2 

think will be invaluable, Mr. Chairman, to the Task Force consideration of Federal penalties. 

I came to know Eric when I served as First Assistant United 

States Attorney in the Eastern District of North Carolina. When I 

joined the office in 2002, Eric was already leading our Organized 

Crime Drug Enforcement Task Force, as you know, OCDETF, Mr. 

Chairman, task force, coordinating Federal investigations and prosecutions of high-level interstate and international drug trafficking. 

Throughout his tenure, Eric believed strongly and demonstrated 

clearly that tough, cooperative, and sustained pressure on drugtrafficking organizations could reduce the flow of drugs, could remove the worst offenders, and could drive down the crime rate and 

make our communities safer. Under Eric’s leadership, our OCDETF 

unit pursued large numbers of serious drug traffickers and gained 

the cooperation of defendants whose information was critical to our 

ability to infiltrate, disrupt, and dismantle these organizations. 

During his tenure, Eric received two Director’s Awards from the 

United States Department of Justice for outstanding prosecutions 

and one from Attorney General Janet Reno and one from Attorney 

General Eric Holder before retiring from the Department of Justice 

in November of 2013. 

Mr. Chairman, I think Eric’s expertise and his deep knowledge 

of what works and what doesn’t work will aid this Committee as 

it considers issues currently facing our country in the area of drug 

control and sentencing policy. So I am pleased to welcome my 

friend and colleague here today. And I hope that all the Members 

of the Task Force will benefit from his perspective. Thank you. 

Mr. GOHMERT. Thank you very much. 

Our next witness, Mr. Marc Levin. Marc A. Levin is director of 

the Center for Effective Justice at the Texas Public Policy Foundation and policy director of its Right on Crime Initiative, which he 

led the effort to develop in 2010. 

Mr. Levin helped develop the Right on Crime Initiative, which 

was launched by the Texas Public Policy Foundation at the end of 

the 2010. Right on Crime has become the national clearinghouse 

for conservative criminal justice reforms, receiving coverage in outlets such as The Wall Street Journal, National Review, New York 

Times, Fox Business News, and The Washington Post. Mr. Levin 

has testified on sentencing reform and solitary confinement at separate hearings before the Senate Judiciary Committee, and has testified before State legislatures. Mr. Levin served as a law clerk to 

Judge Will Garwood on the U.S. Court of Appeals for the Fifth Circuit, and staff attorney at the Texas Supreme Court. 

Our next witness, Mr. Bryan Stevenson. Mr. Stevenson represents the Equal Justice Initiative. He is also clinical faculty at 

New York University School of Law. Mr. Stevenson has represented capital defendants and death row prisoners since 1985, 

when he was a staff attorney with the Southern Center for Human 

Rights in Atlanta, Georgia. Since 1989, he has been executive director of the Equal Justice Initiative, a private, nonprofit law organization he founded. 

The focus is on social justice and human rights in the context of 

criminal justice reform in the United States. EJI litigates on behalf 

of condemned prisoners, juvenile offenders, people wrongly con-
3 

victed or charged, poor people denied effective representation, and 

others whose trials are marked by racial bias or prosecutorial misconduct. 

Mr. Stevenson has served as a visiting professor of law at the 

University of Michigan School of Law. He has also published several widely disseminated manuals on capital litigation and written 

extensively on criminal justice, capital punishment, and civil rights 

issues. Mr. Stevenson is a graduate of Harvard, with both a master’s in public policy from the Kennedy School of Government and 

a JD from the School of Law. 

So the witnesses’ written statements will be entered into the 

record in their entirety. I will ask the witnesses to summarize each 

testimony in 5 minutes or less. To help you stay within that time, 

there is a timing light in front of you there. The light will switch 

from green to yellow, indicating you have 1 minute to conclude 

your testimony; when the light turns red, it indicates the witness’ 

5 minutes have expired. 

At this time, unless there is objection, I want to offer the statement of our Chairman, James Sensenbrenner, Jr., for the OverCriminalization Task Force. Know that our thoughts and prayers 

are for Chairman Sensenbrenner and his wife with the health 

issues that she has had for a week or so. And so hearts and prayers 

go out for both of them. And I have a statement here that I would 

enter into the record. If there is no objection, hearing no objection, 

that will be so order. 

[The prepared statement of Mr. Sensenbrenner follows:] 

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Chairman, OverCriminalization Task Force of 2014 

Good morning and welcome to the seventh hearing of the Judiciary Committee’s 

Over-Criminalization Task Force. Over its first six months of existence, the Task 

Force conducted an in-depth evaluation of the over-criminalization problem. This 

year, the Task Force has held two hearings, focusing on Criminal Code Reform and 

the Over-federalization of criminal law. 

These hearings have followed a logical progression. The Task Force began its 

work by analyzing whether the mens rea, or intent requirements, in the federal 

criminal code are appropriate and sufficient to ensure that, except in very specific 

circumstances, nobody is convicted of a crime without the intent to do something 

that the law forbids. The Task Force next engaged in an examination of regulatory 

crimes, where the lack of an adequate intent requirement is often an issue. I firmly 

believe that, if the regulated conduct is important enough to carry a criminal penalty, it is something Congress should vote upon, rather than leaving it to a regulator 

to implement. For example, we heard testimony from a witness who unknowingly 

violated the Clean Water Act by re-routing sewage in an emergency, and found himself facing up to five years in federal prison. The Department of Justice informed 

us that the statute they used to prosecute this individual was the same one used 

to prosecute BP for dumping millions of gallons of oil into the Gulf of Mexico. Clearly there is a significant problem here. 

The Task Force then held hearings on the need for reform of the federal Criminal 

Code, which we know contains over 4,500 criminal statutes, and the related issue 

of the over-federalization of the criminal law. Our work continues today, as the Task 

Force will take the next logical step by analyzing the penalties associated with the 

over-criminalization of federal law. 

As our previous hearings have illustrated, one of the most important issues facing 

this Task Force is whether certain conduct—even conduct which we all agree should 

be regulated by the federal government—should subject violators to criminal penalties, including incarceration. I think we can all agree, for example, that American 

citizens should be strongly discouraged from polluting our lakes, rivers and oceans. 

But should doing so—particularly unknowingly—rise to the level of a federal criminal conviction? Should Americans face prison time for mistakenly checking the 
4 

wrong box on a form? What about for violating the laws of a foreign country? Alarmingly, as we know from our previous hearings, these are not hypothetical situations. 

The issue of federal criminal penalties has received significant attention on Capitol Hill over the past year, and not just from this Task Force. In particular, many 

Members have advocated for cutting mandatory minimum penalties, especially those 

that apply to drug trafficking crimes. Proponents of this approach have asserted 

that it would serve to reduce the federal budget, trim the prison population, and 

ensure that federal judges have greater discretion and flexibility when sentencing 

drug traffickers. However, as I have stated in previous hearings, I am a strong proponent of determinate sentencing—particularly that an individual who violates the 

law should receive the same sentence in Springfield, Virginia, as he would in 

Springfield, Illinois. Congress is the branch of government responsible for assigning 

culpability to criminal conduct, including culpability for offenses that we determine 

are so significant as to require mandatory incarceration. 

Additionally, even Attorney General Holder has admitted that the nation currently faces a ‘‘serious public health crisis’’ with respect to heroin. This is a rare 

instance where I agree with the Attorney General. Given that we are facing a heroin 

epidemic in this country, I have significant concerns with any legislative proposal 

to cut penalties for those who are bringing significant quantities of this poison into 

our communities. 

I look forward to hearing from our distinguished panel about these and other 

issues associated with federal over-criminalization penalties. 

I want to thank the witnesses for appearing today, and look forward to hearing 

your perspectives on this important issue. 

Mr. GOHMERT. With that, we will turn to the Ranking Member, 

Mr. Scott, for his statement. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, even though the United States represents only 5 

percent of the world’s population, we account for over 25 percent 

of the world’s prisoners. Since 1980, our Federal prison population 

has increased 1,000 percent, the average Federal sentence has doubled, and drug sentences have actually tripled. Drug convictions 

alone make up two-thirds of the increase in the Federal prison population. The so-called war on drugs has been waged almost exclusively in poor communities of color, even though data shows that 

minorities are no more likely to use or sell illegal drugs or commit 

crime. These excessive and discriminatory sentences are driven up 

by mandatory minimums, enhancements, and consecutive counts. 

In fiscal year 2012, 60 percent of convicted Federal drug defendants were convicted of offenses carrying a mandatory minimum 

penalty. 

These defendants are not the ones for whom the harsh penalties 

were intended. They are not the kingpins, they are not the leaders, 

and they are not organizers of criminal syndicates. Rather, data 

from the U.S. Sentencing Commission tells us that the vast majority are couriers, street-level dealers, and addicts. More than half of 

them have the lowest criminal history category and as a result 93 

percent of Federal inmates are nonviolent offenders. 

Mandatory minimums are the worst-of-the-worst sound bites 

masquerading as crime policy. They sentence people before they 

are even charged or convicted, based solely on the name or the code 

section of the crime. No consideration is given to the seriousness 

of the crime or how minor a role one may have played in the crime 

or whether one is a first offender, a young person, or an abused 

girlfriend under the control of a boyfriend. The same code section, 

for example, that prohibits sex between a 40-year-old and a 13- 

year-old also prohibits sex between a 19-year-old and 15-year-old 
5 

high school students. Obviously, they should not be given the same 

sentence, but mandatory minimums often require judges to impose 

sentences that violate common sense. 

The United States already locks up a higher portion of its population than any country on Earth. The Pew Center on the States 

estimates that any ratio of over 350 per 100,000 in jail today, anything above that, the crime-reduction value of increased incarceration begins to diminish. They also tell us that any ratio above 500 

becomes actually counterproductive, that you have got so many 

people locked up that you are actually adding to crime rather than 

diminishing crime because you have messed up so many families, 

you have wasted so much money, you have got so many felons wandering around that can’t find jobs that you are actually adding to 

crime. 

But the data shows that in the United States our ratio is not 

only above 500, but above 700, leading the world. Some minority 

communities have incarceration rates over 4,000 per 100,000, creating what the Children’s Defense Fund calls the cradle-to-prison 

pipeline. Since 1992, the annual prison costs have gone from $9 billion to over $65 billion a year, and the rate of increase for prison costs was 

six times greater than the increased spending for higher education. 

The rates of incarceration we have in this country, looking at crime 

and simply suggesting that the main problem is we are not locking 

up enough people, doesn’t comport with science, data, or common 

sense. 

All research shows that when compared to traditional proportional sentencing, mandatory minimums waste money, disrupt rational sentencing considerations, discriminate against minorities, 

and often require judges again to impose sentences that violate 

common sense. Even when a prosecutor, a judge, defense counsel, 

and probation officers, even the victim, all agree, after having 

heard all the evidence, that the mandatory minimum is too severe 

for a particular case, there is no choice. The judge’s hands are tied 

and the judge must apply the mandatory minimum as a matter of 

law. 

Despite all the problems with mandatory minimums, Congress is 

still trying to pass more, even though there are at least 195 mandatory minimums already on the books. I believe in what they call 

the first law of holes: When you find yourself in a hole, the first 

thing you ought to do is stop digging. So if we are going to get rid 

of mandatory minimums, we have to stop passing new ones. Unfortunately, we are violating that rule; in fact, we passed a new mandatory minimum just last week in the House. 

Granting Federal judges more discretion in sentencing is the 

smart and right thing to do. They are the ones closest to the facts 

and the players in each case. But we also have to confront the fact 

that over the past 40 years, Congress has been playing politics 

rather than working to reduce crime in a smart way. 

We have seen alternative strategies that could be used, like the 

Youth PROMISE Act that I have introduced, which takes a 

proactive approach. It puts evidence-based, cost-effective approaches in crime reduction into play at the community level with 

full community involvement. This strategy has not only been shown 
6 

to reduce crime, but also to save money. It will essentially dismantle the cradle-to-prison pipeline and create a cradle-to-collegeand-career pipeline. 

In terms of criminal justice reform, we need to focus our efforts 

on distinctly Federal interests and ensure that the sentences of a 

correct length are being legislated and imposed. We need to ensure 

that Federal collateral consequences of convictions do not serve as 

a continuing punishment and burden on individuals who have already served their time and paid their debt to society. But most of 

all, we have to oppose mandatory minimums, enhancements, and 

consecutive counts so that we can eliminate the overincarceration 

that violates common sense and increases rather than decreases 

crime. 

Thank you, Mr. Chairman. 

Mr. GOHMERT. Thank you, Mr. Scott. 

The Chair would ask Mr. Conyers, do you wish to make an opening statement? 

Mr. CONYERS. Yes, Mr. Chairman, I would, please, if it meets 

with your approval. 

Mr. GOHMERT. The Gentleman is recognized for 5 minutes. 

Mr. CONYERS. Thank you. This is so important. And I welcome 

the witnesses and look forward to their testimony. 

But the Over-Criminalization Task Force finally focuses today on 

what is the most critical failing of our Nation’s criminal justice system: The continuing prevalence of racism as evidenced by a Federal 

charging and sentencing regime that clearly discriminates against 

people of color. 

Now, racism has permeated our Nation’s history since the beginning. The Constitution of course referred to slaves as three-fifths 

of a man. The Civil War was fought to abolish slavery. And then 

Jim Crow raised its ugly head, and the segregation and tactics that 

followed are a matter of fact. 

We are now approaching the 60th anniversary of Brown v. The 

Board of Education, which of struck down separate but equal as 

the law of the land. And just last year, we celebrated the 50th anniversary of the March on Washington and the passage of the Civil 

Rights Act. 

As a Nation, we have come so far. We like now to think that our 

justice is color blind, that our system is race-neutral. But whether 

overt or subconscious, the vestiges of racism are still reflected in 

our Federal criminal justice system, and it is all the more insidious 

for it. That is because criminal justice is meted out by human 

beings with human failings, including bias. No longer does Jim 

Crow and overt racism rule the day, but rather coded phrases, such 

as policing high crime areas and stop-and-frisk policies, are the 

norm, and combined with mandatory minimums so expertly referred to by our colleague Mr. Scott, and stacking and enhancement penalties, and the so-called three-strikes statutes. It is these 

concepts that disproportionately affect communities of color, drawing more and more people into an antagonistic and unforgiving 

criminal justice system. 

To provide some perspective regarding this problem, I just want 

to breeze through this. In the last 40 years the United States prison population has grown by 700 percent and now accounts for 25 
7 

percent of the world’s prisoners. The number of Federal prisoners 

alone grew by nearly 50 percent from 2001 to 2010. While only 4 

percent of the Federal crimes carry mandatory sentences, 34 percent of those in Federal prison are serving mandatory sentences. 

Moreover, the racial impact of the Federal penalty system is 

wildly disproportionate. One in nine Black men between the ages 

of 20 and 34 are incarcerated. One in 3 Black men and 1 in 6 

Latinos will spend some part of their lives in prison, compared to 

one 1 in 23 White men. Blacks represent 12 percent of total drug 

users in the country, but account for nearly 40 percent of drug-related arrests. 

Now, these numbers are far worse in segregated and impoverished communities. In addition to the devastating societal costs of 

mass incarceration, it also results in a massive economic cost. The 

so-called war on drugs has cost $1 trillion since its beginning, and 

the cost to run our Federal prisons cost $6.9 billion in fiscal year 

2014. 

So before we identify solutions, we must recognize how we institutionalize and normalize racism today. That is what makes this 

discussion this morning so important. I want to focus on how racism, unconscious or not, has a disproportionate impact on criminal 

penalties on minority communities. Bias can begin with a decision 

of where and what offenses are investigated. With enough time and 

officers in a certain location, it is only a matter of time before they 

find reasonable suspicion to stop, detain, and arrest someone or 

many people. 

At the prosecutorial phase, this bias can be magnified through 

decisions about what charges to bring, what plea deal to offer, and 

whether mandatory minimums and enhancements apply. People 

from poor communities of color are more likely to receive harsher 

charges and mandatory penalties. 

The mandatory minimums and statutory enhancements so ingrained in the code that were intended to target so-called kingpins 

and violent criminals do no such thing. Their use is now propagated against low-level, nonviolent offenders who are disproportionately poor people of color. The threat of these staggering mandatory 

de facto life sentences coerces defendants into pleading guilty. They 

impose a trial penalty on those who use their constitutional right 

to a jury trial. 

I am almost there, Mr. Chairman, and I thank you for your indulgence. 

Finally, at sentencing people of color receive harsher sentences 

than would Whites for the same conduct through mandatory minimums and other sentencing enhancements. 

Racism in America has for the most part ceased to be overt. But 

the prevalence of institutionalizing discrimination by writing it into 

law is just as present today as it was 100 years ago. 

The question that stands is this: What can we as a Congress do 

about these pressing issues? Finding solutions to unconsciously institutionalized racism in the criminal justice system and writ large 

on our society is not an easy task, but there are steps we can take. 

We can begin by rolling back mandatory minimums and stacking 

and enhancement sentencing penalties that result in cruel and unusual punishment for what are too often low-level offenses. We can 
8 

revest the judiciary with discretion in sentencing. We can reinvest 

the judiciary with discretion in sentencing. Not all judges are immune to bias, but in doing so we allow the possibility of proportional sentencing and the ability to overturn unduly harsh sentences due to abuse of discretion. 

I conclude on this point, Chairman. 

Mr. GOHMERT. You are double your time. And if we do that, we’re 

not going to get through because of votes that are coming. 

Mr. CONYERS. All right. Then I will just submit the rest of my 

statement. Thank you, Chairman. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

The Over-Criminalization Task Force finally focuses today on what is the most 

critical failing of our Nation’s criminal justice system: the continuing prevalence of 

racism as evidenced by a federal charging and sentencing regime that clearly discriminates against people of color. 

Racism has permeated our nation’s history since the beginning. The Constitution 

referred to slaves as three-fifths of a man. The Civil War was fought to abolish slavery, and then Jim Crow raised his ugly head. 

We are fast approaching the sixtieth anniversary of Brown v. Board of Education, 

which struck down ‘‘separate but equal’’ as the law of the land. 

And just last year, we celebrated the fiftieth anniversary of the March on Washington, and the passage of the Civil Rights Act. 

As a nation, we have come so far. We like to now think that justice is colorblind; 

that the system is race neutral. But, whether overt or subconscious, the vestiges of 

racism are still reflected in our federal criminal justice system, and it is all the more 

insidious for it. That is because criminal justice is meted out by human beings with 

real human failings, including bias. 

No longer does Jim Crow and overt racism rule the day, but rather coded phrases 

such as ‘‘policing high crime areas’’ and ‘‘stop and frisk’’ policies are the norm. And 

combined with mandatory minimums, stacking and enhancement penalties, and socalled ‘‘three strikes’’ statutes, it is these concepts that disproportionately affect 

communities of color, drawing more and more people into an antagonistic and unforgiving criminal justice system. 

• To provide some perspective regarding this problem, let’s begin with a 

few facts:In the last 40 years, the U.S. prison population has grown by 700%, 

and now accounts for 25% of the world’s prisoners. The number of federal 

prisoners alone grew by nearly 50% from 2001 to 2010. 

• While only 4% of federal crimes carry mandatory minimum sentences, 34% 

of those in federal prison are serving mandatory sentences. 

Moreover, the racial impact of the federal penalty system is wildly disproportionate: 

• 1-in-9 black men between ages 20 and 34 are incarcerated. 

• 1-in-3 black men, and 1-in-6 Latinos will spend some part of their lives in 

prison, compared to 1-in-23 white men. 

• Blacks represent 12% of total drug users in the country, but account for nearly 40% of drug related arrests. 

These numbers are far worse in segregated and impoverished communities. 

In addition to the devastating societal cost of mass incarceration, it also results 

in a massive economic cost. The so-called ‘‘war on drugs’’ has cost $1 trillion since 

its beginning, and the cost to run our federal prisons cost $6.9 billion in FY 2014. 

Before we identify solutions, we must recognize how we institutionalize and normalize racism today. 

First, I want to focus on how racism, unconscious or not, has a disproportionate 

impact on criminal penalties on minority communities. Bias can begin with the decision of where and what offenses are investigated. With enough time and officers in 

a certain location, it is only a matter of time before they find ‘‘reasonable suspicion’’ 

to stop, detain, and arrest someone. 
9 

At the prosecutorial phase, this bias can be magnified through decisions about 

what charges to bring, what plea deal to offer, and whether mandatory minimums 

and enhancements apply. People from poor communities of color are more likely to 

receive harsher charges and mandatory penalties. 

The mandatory minimums and statutory enhancements so ingrained in the Code 

that were intended to target so-called ‘‘kingpins’’ and violent criminals do no such 

thing. Their use is now propagated against low-level, non-violent offenders who are 

disproportionately poor people of color. 

The threat of these staggering mandatory de facto life sentences coerces defendants into pleading guilty. They impose a trial penalty on those who their constitutional right to a jury trial. 

Finally, at sentencing, people of color receive harsher sentences than would 

whites for the same conduct through mandatory minimums and other sentencing 

enhancements. 

Racism in American has, for the most part, ceased to be overt, but the prevalence 

of institutionalizing discrimination by writing it into law is just as present today 

as it was 100 years ago. 

The question that stands is: What can we, as a Congress, do about these pressing 

issues? 

Finding solutions to unconsciously institutionalized racism in the criminal justice 

system, and writ large on society, is not an easy task. But there are steps we can 

take. 

We can begin by rolling back mandatory minimums and stacking and enhancement sentencing penalties that result in cruel and unusual punishment for what are 

too often low-level offenses. 

We can revest the federal judiciary with discretion in sentencing. Not all judges 

are immune to bias, but in doing so we allow for the possibility of proportional sentencing, and the ability to overturn unduly harsh sentences due to abuse of discretion. 

We can recognize that Congress can and should defer to States in matters that 

the States can—and already do—investigate, prosecute and sentence, rather than 

engage in wasteful duplicative federal prosecutions allowing United States Attorneys to focus on uniquely federal concerns. 

Criminal justice is just one symptom of the underlying problem, and I hope to 

work with my colleagues in the future to hold a more in-depth forum to explore the 

issues of systemic racism and its impacts on society at large that will include a look 

at education, public services, voting rights, drug and mental health treatment, and 

employment. 

For today, I am hopeful that our witnesses today can shed light on the issues of 

the disparate racial impact of the criminal justice system, the economic and societal 

impact of these policies, and propose potential solutions and I look forward to their 

testimony. 

Mr. GOHMERT. I had waived giving my statement and offered Mr. 

Sensenbrenner’s for the record. But with all the discussion about 

racism, let me just make this one point. I was a judge for 10 years. 

I tried three capital murder cases in Tyler, Texas. Two were of Anglos, one was an African American. The two Anglos got the death 

penalty, the African American got life. So I don’t always have the 

appreciation for racism entering into every aspect. 

Someone had raised an issue of, well, gee, since the judge appoints the grand jury foremen, who had the leadership role in the 

grand juries. So I was attacked before they checked my record. I 

never, ever considered race in appointing foremen for my grand juries. Once they got the facts and found out that I had a much higher percentage of African Americans, as it turned out, who were 

grand jury foremen, not because of race, they were just the best 

leaders on the grand jury. And so, anyway, I didn’t find race an 

issue in my courtroom at all. 

I would ask the Chairman of the full Committee, do you wish to 

make a full statement. 
10 

Mr. GOODLATTE. Yes. Thank you, Mr. Chairman. I am very 

pleased to be here at the third hearing of the Over-Criminalization 

Task Force following its reauthorization earlier this year. 

This hearing will focus on the penalties imposed for violations of 

Federal law. As others have already noted, the subject of penalties 

is a very broad topic, covering a wide array of complex legal and 

policy issues. Many of these issues have already been covered in 

detail by this Task Force, including the need for an adequate intent 

requirement in the Federal criminal law, the problems with regulatory crime, the overfederalization of criminal law, and the need 

for criminal code reform. 

The issue of adequate mens rea is of particular interest to me, 

and it is especially significant when considering the penalties associated with violations of Federal law. As I and other Members of 

this Task Force have stated repeatedly, no American citizens 

should be subjected to a Federal criminal penalty without the intent to do something the law forbids. 

Today I expect to hear from our panel about these and many 

other issues associated with Federal penalties. Obviously, mandatory minimum sentences are a significant part of this. Advocates 

for reform to mandatory minimums have argued that these reforms 

are necessary to ensure low-level, nonviolent offenders, particularly 

in drug cases, are not serving long prison sentences. 

While I have some concerns about many of the proposals to reform the Federal sentencing scheme in this way, I am open to hearing arguments on both sides of this issue. However, one everpresent hurdle to reform in this and other areas is the repeated actions by this Administration to circumvent Congress’ constitutional 

role in drafting, considering, and passing legislation important to 

the American people. 

At the Judiciary Committee’s DOJ oversight hearing last month, 

I and other Members of the Committee questioned the Attorney 

General at length about the Holder Justice Department’s persistent 

attempts to change the law by executive fiat. I do not believe that 

any of us received satisfactory answers. It will be difficult to find 

support for reform if Congress cannot trust that the Administration 

will abide by these reforms. 

I can assure everyone that under my leadership the House Judiciary Committee will continue to closely monitor and analyze this 

and other issues associated with the imposition of Federal criminal 

penalties, and I am confident that the Task Force will continue its 

outstanding work. And I want to thank our distinguished panel of 

witnesses today, and I look forward to their testimony. 

Thank you, Mr. Chairman. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

With that, we are ready to proceed under the 5-minute rule with 

questions. 

At this time, Mr. Otis, you may proceed in your 5 minutes. 

TESTIMONY OF WILLIAM G. OTIS, ADJUNCT PROFESSOR OF 

LAW, GEORGETOWN UNIVERSITY LAW CENTER 

Mr. OTIS. Mr. Chairman, Ranking Member Scott, and Members 

of the Committee, I am honored that you have invited me here 

today to talk with you—— 
11 

Mr. GOHMERT. Is the green light on your microphone? 

Mr. OTIS. Can you hear me better now? 

Mr. GOHMERT. Yeah. If you would move that a little closer so we 

can make sure everybody here can hear. You spent too much time 

getting here for people not to hear what you have to say. Thank 

you. 

Mr. OTIS. Again, Mr. Chairman, Mr. Ranking Member, reMembers of the Committee, I am honored that you invited me to talk 

with you today about this extremely important subject of Federal 

criminal penalties. 

The Task Force is rightly concerned about overcriminalization, 

and in particular about the proliferation of statutes that impose 

criminal liability without the traditional requirement that the defendant harbor bad intent. Such statutes undermine the very legitimacy of criminal law, which is understood by ordinary people to 

forbid only behavior the average person would recognize as wrong. 

I am happy to take questions on this subject and have written 

a few articles about it. However, I want to focus for the moment 

on a different topic: mandatory minimum penalties. Serious mandatory minimums continue to be needed. Under current law, sentencing judges have wide discretion, as they should. But judges and 

the judicial branch can make breathtaking mistakes. Some of you 

view Citizens United as one of them. Others view Kelo as another. 

All of us view Plessy v. Ferguson as a drastic mistake in American 

history. 

Judges are not infallible. The Framers recognized in adopting the 

separation of power that no one person and no one branch should 

have 100 percent discretion 100 percent of the time. Congress is 

fully warranted in directing that for some appalling crimes a 

strong, rock-bottom sentence must be imposed. 

Criticism of mandatory minimum sentencing is often at the heart 

of the charge that the Federal criminal justice system is broken or 

failing. It certainly looks broken to a heroin trafficker facing long 

incarceration. But the health of the system is properly measured 

not by the incarceration rate, but by the crime rate. By that standard, it is anything but broken. Crime is down 50 percent over the 

last 20 years in the era of mandatory and longer sentencing. Would 

that some of our other, vastly more expensive domestic initiatives 

have had anything like that success. 

Much of the debate now seems to be driven by two misconceptions. The first is that mandatory minimums require Federal 

judges to imprison for years some high school kid who has been 

caught smoking a joint. That is simply false. Mandatory minimums 

apply overwhelmingly to trafficking, trafficking in deadly drugs 

like heroin, methamphetamine, and PCP. 

The second misconception is that having a larger prison population is per se a bad thing. One might as well say that having 

more criminals in jail rather than in your neighborhood is a bad 

thing. When criminals are not imprisoned, they don’t just disappear. Five-year recidivism figures show that more than threequarters of drug offenders return to crime after they are released. 

If we go back to the naive, failed policies of the 1960’s and 1970’s, 

we will get the failed, crime-ridden results of the 1960’s and 1970’s. 
12 

Finally, a number of recent developments tell us that lighter sentencing at the Federal level is, for good or ill, already largely the 

new norm. The prudent thing for Congress to do is to assess over 

the next few years whether those developments and their promise 

of big cost savings and no increase in crime turn out to be true. 

Last summer, for example, the Attorney General himself directed 

that, for roughly the set of drug defendants for whom some pending 

legislation would apply, Federal prosecutors are no longer to seek 

mandatory minimum sentences. This new policy has effectively 

mooted a large body of mandatory minimums and has shifted discretion back to judges. The Sentencing Commission has adopted 

the two-level reductions in Guidelines offense levels for almost all 

nonviolent drug offenders, producing notably shorter sentences, 

and has announced just recently that for the first time ever more 

sentences are being given below the guidelines range than within 

it. 

Perhaps most stunning is the Administration’s announcement of 

impending clemency for hundreds and more likely thousands of offenders serving what it views as excessive sentences. In an unprecedented move, the defense bar has been given a broad and 

proactive role in proposing clemency candidates. With these proposals already in train, Congress has the opportunity to see for 

itself whether more discretion and lighter sentences keep their 

promise of frugality and low crime. Maybe they will. Maybe they 

won’t. It is only common sense for Congress to find out before 

weakening a system we know has helped keep us safe. 

Mr. GOHMERT. Thank you very much. 

[The prepared statement of Mr. Otis follows:] 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 

Mr. GOHMERT. We will hear from our next witness, Mr. Evenson. 

You are recognized for 5 minutes. 

TESTIMONY OF ERIC EVENSON, NATIONAL ASSOCIATION OF 

ASSISTANT UNITED STATES ATTORNEYS 

Mr. EVENSON. Thank you, sir. Chairman Gohmert, Ranking 

Member Scott, and Members of the Task Force, I am honored to 

appear before you on behalf of the National Association of Assistant United States Attorneys. I would like to thank Congressman 

Holding for his kind introduction. NAAUSA shares strong concern 

over legislative proposals to reduce minimum mandatory sentences. 

In the 1980’s, I was a State prosecutor, and when we would do 

drug cases in front of a court, we would often hear the complaint 

that you are only getting the little guy, you are not getting the big 

fish. And, unfortunately, because of weak State laws and diminished resources, there was a lot of truth to that complaint. 

State prosecutions are based on two things. You either have to 

catch the drug dealer in possession of drugs or you have to catch 

him selling it. And as a result, what ends up happening is you oftentimes don’t get the source of supply. The State laws are just too 

weak. The resources are too minimal. What happens is that the 

leader of the drug organization is largely untouchable for years. We 

all live in communities where people say, why don’t they get that 

big drug dealer, and all the neighbors know that. This is why. Because the State laws don’t have the leverage that is needed. 

In 1990, I became an Assistant United States Attorney. I quickly 

realized that we focused on a different set of defendants, ones that 

were selling significant quantities of drugs, enough to trigger what 

are called minimum mandatory sentences. Congress mandated that 

we pursue these organizations and provided us with the tools, including minimum mandatory sentences, that we needed. 

Now, here is the key difference between State prosecution and 

Federal prosecution. Sometimes the average man on the street just 

doesn’t understand what we are doing. It is this: It is called conspiracy. Conspiracy law. If you don’t remember anything else, I 

hope you remember that. I am going to explain how it works on 

a day-to-day basis, and I am going to show you where the rubber 

meets the road. 

In order for us to charge the leader of an organization, we generally do it with conspiracy law, because they don’t sell to undercover officers; they are too clever. They sell it to their conspirators 

who sell it on the street at the retail level. 

Now, what do we need to charge conspiracy in Federal court? 

Simple. We need co-conspirator testimony. That is how we do it. To 

go after the big fish, we have to have the cooperation of the smaller 

fish. And every Assistant United States Attorney worth his salt 

knows this. 

I will tell you that securing their cooperation is no easy task. 

They don’t want to cooperate. This is hard, mean business. If the 

sentence they face is too low, they will tell you they can do their 

time standing on their head. I have debriefed personally hundreds 

of arrested drug dealers and explained to them, in the presence of 

their attorney, the need for them to assist and testify truthfully. 
28 

Congress provided their sentence could be reduced by the judge 

if they substantially assisted. You see, their attorney has already 

explained to them that they are facing a strong minimum mandatory sentence, and the only way that they are going to get a sentence reduction is to substantially assist. They have to be willing 

to testify. 

Now, this straightforward choice of options, designed by Congress and enforced by the Department of Justice, has led to the dismantling of numerous drug organizations in every district, city, 

and town in America. But without the cooperation of these co-conspirators, Federal law enforcement will be unable to charge and arrest these leaders and sources of supply. Without minimum mandatory sentences, many, if not most, would simply refuse to testify. 

Minimum mandatory sentences and the presumption of pretrial 

detention have given Assistant U.S. Attorneys the leverage they 

need to garner these witnesses and to stop drug organizations. If 

this leverage is removed or weakened, then vital witnesses will become unavailable. It is really very simple. 

In essence, reducing the minimum mandatories will substantially 

cut down on our witnesses. Fewer of the big drug dealers will be 

arrested, and we will revert back to convicting only the lower level 

dealers we can buy directly from or we find in possession of drugs. 

We won’t be able to convict the sources of supply. 

Mr. GOHMERT. Thank you very much, Mr. Evenson. 

Mr. EVENSON. Your Honor, may I have just a few more minutes? 

I still have some time. 

Mr. GOHMERT. Well, actually, your time is—— 

Mr. EVENSON. Okay. 

Mr. GOHMERT [continuing]. Five minutes is up. 

Mr. EVENSON. I am sorry. I didn’t see the yellow light. 

Mr. GOHMERT. It did come on with a minute to go. 

Mr. EVENSON. I am very sorry, Your Honor. Thank you. 

[The prepared statement of Mr. Evenson follows:] 
29 
30 
31 
32 
33 
34 
35 

Mr. GOHMERT. Thank you. 

At this time, we will proceed with Mr. Levin. 

You are recognized for 5 minutes. 

TESTIMONY OF MARC LEVIN, ESQ., POLICY DIRECTOR, RIGHT 

ON CRIME INITIATIVE AT THE TEXAS PUBLIC POLICY FOUNDATION 

Mr. LEVIN. Well, thank you for having me. We at Right on Crime 

are very pleased that Congress is examining various options for 

reining in unnecessary Federal criminal laws that are properly the 

province of State governments, ensuring, as Chairman Goodlatte 

said, that there is a culpable mental state required for conviction, 

reexamining mandatory minimums for nonviolent offenses, implementing evidence-based practices and community supervision, improving programming in Federal prisons, and strengthening reentry so we can reduce that high recidivism rate that Mr. Otis 

talked about. 

We are committed to the 10th Amendment and to making sure 

that criminal justice matters. The garden variety street crimes are 

the province of State and local governments. We recognize that although there has been a sixfold increase in incarceration rates from 

the early 1970’s to today, that some of that was necessary, particularly to incarcerate violent and dangerous offenders for long periods 

of time. But we believe that the pendulum has swung too far, and 

now we have too many nonviolent and low-risk offenders behind 

bars; and that through developments and new technologies and 

techniques, whether their drug courts, electronic monitoring, risk 

and needs assessments, we have a better ability to supervise more 

nonviolent offenders in the community. 

Over the past several years, we have worked with conservative 

governors, conservative lawmakers across the country to enact successful reforms, including many dealing with mandatory minimums 

that we are discussing today. As an example, 29 States in the last 

decade have reduced mandatory minimums relating to nonviolent 

offenses, and crime has continued to decline. One example is South 

Carolina reduced mandatory minimums as part of a comprehensive 

reform in 2010, and crime has declined dramatically in South Carolina, 14 percent, since reducing those drug mandatory minimums. 

So we would argue that we need to reexamine mandatory minimums for several reasons, and simply those of course relating to 

nonviolent offenses. 

Number one, of course, they can result in excessive prison terms. 

And the reality is the vast majority of those affected by it are not 

supervisors, leaders, kingpins. That is only 7 percent of those cases. 

And so instead what we need to do is look at the fact that most 

individuals affected by Federal drug mandatory minimums are, in 

fact, nonviolent. More than half had no prior criminal record; 84 

percent no weapon involved. 

Now, certainly we can also see even outside of the drug issue. 

Another example is when somebody has ever had an offense, even 

decades ago, they can’t have a gun, or they are subject to Federal 

mandatory minimums. There was a gentleman in Tennessee hunting a turkey with a rifle and had a minor offense decades ago, 

ended up with a 15-year mandatory minimum. And the Federal 
36 

judge in that case, like many other Federal judges, including many 

conservative ones, like Judge Cassell, have said, the sentence I am 

being forced to hand down by this mandatory minimum is excessive. 

Now, of course mandatory minimums are supposed to produce 

uniformity, but they have not done that. And part of that is because of the enhancements, the 851, the 924 enhancements that 

prosecutors can file. And what we have seen is across various districts the rate at which those enhancements are filed varies dramatically. One district was 3,994 percent more likely to file enhancement than another. 

And another question is really we have to look at essentially the 

main reason mandatory minimums for nonviolent offenses came 

into being was the concern that judges were exercising excessive 

discretion. But, interestingly, in fiscal year 2013 only 17.8 percent 

of the below-guideline sentences were as a result of judicial departures; more than 38 percent, and this is drug offenders, came from 

urging of prosecutors for substantial compliance and other reasons. 

So judges are actually adhering very closely to the sentencing 

guidelines in more than 80 percent of the cases. 

Now, it has also been argued mandatory minimums are necessary to encourage defendants to plead guilty. Ninety-seven percent of Federal cases are resolved by guilty plea. And in fact, the 

Sentencing Commission found a greater percentage of those Federal criminal charges that don’t apply to mandatory minimums resulted in a guilty plea, compared to those where mandatory minimums do apply. 

Now, we certainly don’t want to have unlimited discretion. In 

Texas, for example, we have sentencing ranges for various crimes; 

18 States have sentencing guidelines. There does need to be some 

constraint on judges. So I think it is a false dichotomy to say we 

have to just go back to where judges can decide on any sentence 

willy-nilly. 

Now, let me just address a couple of other issues. One is that we 

are still talking about people going to prison for a long time. When 

the crack powder disparity was narrowed in 2010, those who have 

subsequently been convicted of crack cases have received an average Federal prison term of 97 months. That is real time. 

And let me just also conclude by saying we would urge Congress 

to rein in overcriminalization by consolidating all the Federal 

criminal laws in one code; adopting a rule of construction that applies a strong mens rea protection when the underlying statute is 

unclear; codifying the rule of lenity, which says that when there 

are two objectively reasonable interpretations of a statute, the one 

favoring the defendant should prevail; and finally, making sure 

that agencies cannot unilaterally enact criminal penalties on regulations without the express approval of Congress. 

Mr. GOHMERT. Gentleman’s time has expired. Thank you very 

much. 

[The prepared statement of Mr. Levin follows:] 
37 
38 
39 
40 
41 
42 
43 
44 
45 

Mr. GOHMERT. Mr. Stevenson, you are recognized for 5 minutes. 

TESTIMONY OF BRYAN STEVENSON, PROFESSOR OF CLINICAL 

LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, FOUNDER 

AND EXECUTIVE DIRECTOR, EQUAL JUSTICE INITIATIVE 

Mr. STEVENSON. Thank you. I am going to express my gratitude 

to this Task Force for the opportunity to appear before you today. 

I want to contextualize a little bit just how serious the problem 

of overcriminalization and overincarceration is. There are new reports, one published by the National Law Employment Project and 

one by the Brennan Center, that now estimate that 68 million 

Americans—68 million—have criminal records. That is, they have 

been arrested, fingerprinted, and are subject to all of the restrictions that come with having a criminal record. 

Most of this dramatic increase is a consequence of a policy choice 

we made 30 years ago to treat drug addiction and drug possession 

as a crime problem rather than a healthcare problem. Many of our 

allies across the globe have actually made a different choice and 

have seen dramatic reduction in drug addiction and drug abuse. 

We have seen the opposite. 

The consequence of that choice is what has put States in great 

crisis. And I would like to urge this Task Force to look to the 

States for some leadership on these issues. As my colleague has 

mentioned, States have had to deal with the consequences of overincarceration, the costs, $6 billion in jails and prisons in 1980, $80 

billion today. Many States governments found themselves seeing 

their State budgets bankrupt by the spending that is being directed 

to jails and prisons. They couldn’t spend on public safety, they 

couldn’t spend on health and human services. 

And so they have made the difficult decision to retreat from mandatory minimum sentencing, from overincarceration. And what I 

think is important about what they can teach us is that, as was 

indicated, 29 States have now eliminated these laws or restricted 

these laws and seen their crime rates fall, seen their budgets improve. And I think that lesson is an important lesson for this Task 

Force. 

There are a bunch of concerns that need to be addressed. Number one, when we have mandatory minimum sentences, we do not 

eliminate discretion. There is this theory that we were going to 

solve inequality in sentencing by taking discretion away from 

judges. What we do with mandatory minimum sentencing is actually take the discretion, shift it from the judge, and give it to the 

prosecutor. 

I have a great deal of respect for my friends, men and women, 

who work as U.S. Attorneys across this country. But all of us bring 

biases into this process. And to empower any agent—any agent— 

to exercise the kind of power that now exists, with no transparency, no accountability, I think creates the kind of disruption 

that we have seen. 

I want to emphasize that the overwhelming majority of people in 

the Federal system serving long sentences for mandatory minimum 

sentences are not the kingpins. I agree with the colleagues here. 

If we want to go after these kingpins, I don’t have any concerns 

with that. But the U.S. Sentencing Commission estimates that two- 
46 

thirds of the people serving these sentences are low-level or midlevel offenders. It is that consequence that I think we can address 

by reform. 

There are particular problems that I think are reflected by what 

we are doing beyond the costs, beyond the challenges that are 

being created, and one is the effect that we are having on communities. I am deeply disturbed by the fact that I go into communities 

where I talk to 13- and 14-year-old kids who expect to go to jail 

or prison. You can’t have the kind of data that we have—for example, one in three Black kids is expected to go to jail—you can’t have 

that data without it having very serious collateral consequences. 

And many of the data suggest that we are actually pushing people into crime lifestyles, into drug lifestyles, into criminogenic lifestyles because there is this hopelessness that I think comes from 

these excessive, extreme, misguided sentences. 

There are vulnerable groups that I also want to emphasize. The 

rate of women going to prison in the Federal system has increased 

700 percent. Children. We actually have Federal statutes that 

allow the prosecution of children as young as 13 years of age to be 

subject to life sentences, some for behaviors that do not reflect serious crime categories. And veterans. We have a growing population 

of men and women who served abroad who come back with trauma, 

who come back with drug addiction, who come back with a lot of 

disabilities, and because of our mandatory minimum schemes, we 

are not authorized to account for their service. We don’t have the 

discretion to account for that. That creates very, very disparate 

outcomes, unfair outcomes, unjust outcomes. 

I want to emphasize two things. One, there are 17 States that 

have reduced these mandatory minimum statutes that have seen 

their crime rates fall. I think we should look to those States for the 

kinds of reductions and the kinds of adjustments that need to be 

made. 

And the last thing I want to emphasize is that we are at a moment in American history where we have unparalleled, widespread 

consensus that this is the thing that we need to do, eliminate these 

mandatory minimums. When the American Legislative Exchange 

Council was making this recommendation, as is the American Civil 

Liberties Union, when people on the right and on the left recognize 

that we are spending too much money, wasting too much money on 

incarcerating people who are not a threat to public safety, I think 

it creates an opportunity for this Task Force to lead this Congress. 

In 2012—and the last point I will make—the voters of California 

in a referendum, in every county voted to eliminate three-strikes 

laws and mandatory minimum sentencing. I think that signal is 

the signal this Task Force needs to move forward on this important 

issue. 

Mr. GOHMERT. Thank you. We will hear more. 

[The prepared statement of Mr. Stevenson follows:] 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
69 
70 
71 
72 
73 
74 

Mr. GOHMERT. At this time, we will begin the 5-minute questioning. I will reserve, since I have got to be here till the end, and 

go ahead and recognize the Chairman of the full Committee for 5 

minutes. 

Mr. GOODLATTE. Well, thank you, Mr. Chairman. 

And first let me commend all four of these witnesses. I think you 

have made great presentations and you have focused this discussion and the debate. 

First, Mr. Otis, let me start with you. In many communities, including many in my congressional district in the Shenandoah Valley, western Virginia, there has been a spike in deaths associated 

with heroin, including among young people. Do you believe it could 

send a bad message to young people to have the Federal Government reduce penalties across all drug categories, including for heroin? 

Mr. OTIS. I could hardly imagine a worse message. I was appalled the other day when, I think it was on a Monday, I saw the 

Attorney General give a talk recommending some legislation currently pending in the Senate that would substantially cut back on 

mandatory minimums without ever mentioning the specific drugs, 

including heroin, to which mandatory minimums apply. And the 

very next day, I saw him announce that there was a heroin crisis 

going on in many communities in this country. The idea—— 

Mr. GOODLATTE. Let me cut you short just because I want to give 

some other people the opportunity, and I have got a few questions 

I want to ask. 

Let me let Mr. Stevenson respond to the same question. 

Mr. STEVENSON. Yes. I actually think that we are not going to 

affect use of heroin, use of some of these very serious drugs by creating harsher penalties. When you have an addiction, when you 

have a disability, when you have a disorder, the last thing you are 

thinking about is, what kind of sentence am I going to serve? I 

think we are going to disrupt the heroin epidemics that we have 

identified in these communities with interventions that recognize 

what works to get people off heroin. And that is healthcare models. 

We have got a lot of very successful models that will help us 

achieve that. But we are not going to do it through sentencing. 

Mr. GOODLATTE. Mr. Otis, back to you. If you are not enamored 

with the present reform proposals, do you have any suggestions or 

are you simply standing pat on the current law? 

Mr. OTIS. I do, Mr. Chairman. I would actually support stronger 

reform than is currently being proposed, but it would be reform in 

a different direction. 

For example, I would retain the requirement currently pending 

in some Senate legislation that the Attorney General list all nonmens rea statutes. I would require, in addition, the Attorney General to explain as to each how criminal penalties can be squared 

with the traditional notion of blame and culpability. Such explanations would have to include a discussion of why regulatory violations could not more effectively and fairly be processed as civil matters. 

I would eliminate incarceration as a potential punishment for 

non-mens rea crimes. I would require that enforcement be under-
75 

taken only by the three agencies that have professional experience 

with this. That is—— 

Mr. GOODLATTE. Let me cut you short because I am mainly interested in reforms. I am interested in those reforms very much, and 

I would like you to submit those to us. 

But I am mainly interested at this hearing today about mandatory minimums and alternatives to those. 

But because my time will run short, let me turn next to Mr. 

Levin. You state that a primary focus of the Right on Crime Initiative is maximizing the public safety return on the dollars spent on 

criminal justice. Do you assert that there are no costs, social or otherwise, involved with the early release of drug offenders into communities where the mechanism is reduce penalties, broaden safety 

valve provisions, or executive clemency? 

Mr. LEVIN. Thanks your for question. Right on Crime doesn’t 

support or oppose any actual legislation. But I will tell you what 

we have worked with many States on is how do you take some of 

the savings, if you are going to have people serve lightly less time 

for nonviolent offenses, how do take some of those savings and reinvest them in stronger parole supervision; reentry programs, 

where people, when they come out of prison, have to be drug tested, have to report to a parole officer, can’t see certain people, including gang members; electronic monitoring; a whole host of models. The Hawaii HOPE Court, which is now being used in reentry 

in Washington State. 

So I think what we need to do is make sure when we have people 

perhaps coming out of prison a little earlier for certain nonviolent 

offenses, who are determined to be low risk, that we then in the 

community make sure they have the supervision so that they don’t 

go back to their old ways. 

Mr. GOODLATTE. Thank you. 

And, Mr. Evenson, in your 23 years as a Federal prosecutor, how 

often were drug-trafficking cases brought within your district 

where the drug quantity was below the statutory mandatory minimum level? 

Mr. EVENSON. I can’t think of one. 

Mr. GOODLATTE. Anybody else want to respond to that very briefly? 

Mr. EVENSON. And let me just say this: The majority of defendants that were brought in had prior drug convictions in State court. 

Mr. GOODLATTE. And is it your opinion that these are serious 

drug offenders and not occasional users? 

Mr. EVENSON. Absolutely. The individuals that our agents were 

looking at were heavily involved with distributing narcotics over 

extended periods of time. And they usually had prior State convictions that resulted in no time or probation, suspended sentences. 

And when we were able to obtain necessary evidence against them, 

we were able to bring them in, convince them that they were looking at strong minimum mandatory sentences, and it was at that 

point they realized that they wanted to cooperate, they assisted us, 

and were willing to testify. That is how we built our case and went 

up the chain and got the source of supply. 

If I can just say this. Drug organizations set up strongholds in 

neighborhoods and they affect everybody in that community. We 
76 

represent the law-abiding citizens in that community. And as the 

Congressman said here a moment ago, referring to poor communities of color. We represent many of those poor communities of 

color who are sick and tired of that drug trafficker abiding by that 

kind of behavior in the district. 

I will tell you one example. We arrested a significant drug trafficker who was involved with violence. 

Mr. GOHMERT. The time has expired. 

Mr. EVENSON. I am sorry, Your Honor. 

Mr. GOODLATTE. I thank the gentleman. If you want to submit 

something for the record to expand on that, we would welcome 

that. 

Thank you, Mr. Chairman. I appreciate your forbearance. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

At this time Mr. Scott, the Ranking Member, would be asking 

questions, but he had indicated to me he would like to first yield 

to the Ranking Member of the overall Committee, Mr. Conyers, for 

5 minutes. 

You are recognized. 

Mr. CONYERS. Thank you, Judge Poe. 

Let me begin with Marc Levin, Policy Director. 

And I want to express my appreciation for this discussion going 

on here. It is quite balanced and, to me, quite revealing. 

Mr. Levin, can you speak about States that have eliminated or 

reduced mandatory penalties and their effect on the crime rate, the 

guilty plea rate, the cooperation rate. 

Mr. LEVIN. Yes. Thank you very much, Congressman Conyers. 

In fact, one of the examples is Michigan, which you are probably 

familiar with, in 2000 eliminated their drug mandatory minimums, 

including retroactively, and then, in the subsequent decade, property crimes fell 24 percent; violent crime, 13 percent. 

I mentioned earlier South Carolina, as another example, in 2010, 

rolled back their drug mandatory minimums and has seen crime 

drop 14 percent since then. 

Georgia recently under Governor Deal, who is a former prosecutor—his brother is a drug court judge, and drug courts are one 

of the best solutions we have. They rolled back drug sentencing 

laws about a year ago, the penalties on low-level drug possession. 

And they have seen crime continue to decline in Georgia. 

So Texas, where I am from, we are definitely still tough on 

crime, and we say we are tough and smart. And so that does involve making the sentence fit the crime. For our drug possession 

cases, just as an example, if you have 1 to 4 grams of drugs, your 

sentence could be 2 to 10 years. That could be probation or prison. 

I think that what we need to do is—the heroin epidemic was 

mentioned earlier. That is a scourge. But, for example, there is new 

pharmacological interventions to literally block the receptors so the 

heroin addict doesn’t feel anything anymore. 

Certainly those kingpins dealing large amounts of drugs, they 

are going to continue to get heavy Federal sentences. And we are 

just talking here about mandatory minimums, but there could still 

be sentences above that. That is just the floor. 
77 

And no one is talking about getting rid of any mandatory minimums, just recalibrating them to some degree, expanding the safety valve, for example. 

And so I really think we have to keep in focus that, when you 

go back on the crack/powder disparity, after that was narrowed, 

the average sentence is 97 months. That is 7 or 8 years. That is 

a lot of incentive to cooperate with the prosecutor and have that 

prosecutor be able to tell the judge, ‘‘This guy is fully cooperating.’’ 

So given 97 percent of cases plea out, I don’t buy that we need 

penalties that are unjust simply to convict a third party. We ought 

to be focusing on what sentence fits the crime in that individual 

case before the court. 

Mr. CONYERS. Thank you very much. 

So there has been, in effect, no increase in crime rates when we 

have reduced these penalties, and the plea rates and cooperation 

have gone on. 

Mr. LEVIN. I think that is correct. And I would also say the Federal system is a very small percentage. There is over 2 million people locked up in the U.S. Only 10 percent of them are in the Federal system. 

So I would argue that, frankly, some of the best things we could 

do to reduce crime and have been doing are like policing—datadriven policing like CompStat in New York City. We can actually 

deter crime by having police in the right places. 

And so, again, you know, with the Department of Justice, we are 

getting to a point where close to a third of the budget is the Federal prison system, and we could be using those funds for prosecutors, for other strategies. 

Mr. CONYERS. Is this from the State that you are giving us this 

experience, State instead of Federal? 

Mr. LEVIN. Yes. I am pointing out to you that I think the crime 

rates are more tied to State policy because, of course, the vast majority of defendants are sentenced and those incarcerated in State 

systems rather than the Federal Government. So I think the Federal Government has a very limited effect on the crime rate. 

Mr. CONYERS. And after crack reductions, there was no increase 

in recidivism for those offenders either? 

Mr. LEVIN. Yeah. In fact, in Texas, we have seen our crime rate 

lowest since 1968. We have closed three adult prisons. Our probation and parole recidivism rates have fallen dramatically. 

And it is because, instead of building more prisons, we took some 

of that money and put it into strengthening probation, lower caseloads, more drug courts, more treatment programs. So I think that 

the Federal Government can learn from that. 

Mr. CONYERS. Let me ask my final question to Mr. Otis. 

The media chooses how to portray the face of crime. It can choose 

to paint the face of a criminal as one—or someone of color. 

Law enforcement decides which neighborhoods and crimes to 

focus on, and that means not all neighborhoods are targeted. ‘‘You 

show me the man, and I will find you the crime.’’ 

Officers decide which cases are presented for prosecutors, and 

prosecutors frequently decide who is charged with mandatory penalties and who is not. 
78 

Are you saying, sir, that it is impossible for bias, unconscious or 

not, to seep into our system? 

Mr. OTIS. May I answer that question? 

Mr. GOHMERT. Yes. Go ahead and answer. This is the last question. 

Mr. OTIS. Of course it is not impossible for bias to get into the 

system. Anyone who would say that would be out of his mind. 

Nor is it impossible for ideology or naivete to creep into judges’ 

decisions on what sentencing is when they are not constrained by 

a mandatory minimum. 

And I would cite for you a specific example, that being the Corey 

Reingold case, the child pornography case in New York where a 

Federal district judge imposed a sentence of 30 months on a defendant who did not merely possess, but had distributed, child pornography. 

And I am not talking here just about nude pictures of teenagers. 

I am talking about elementary school-age children in contorted 

poses that I am not going to describe in a setting like this. 

The district judge was so influenced by his own personal opinions 

and so convinced that Congress’s mandatory minimum of 5 years 

was unfair that he sentenced the defendant to 30 months. A unanimous panel of the Second Circuit with a majority of Democratic-appointed judges reversed him. 

And the only reason that panel was enabled to require the district judge on remand to impose at least 5 years was that Congress 

had had the wisdom to say, ‘‘For a crime like this, you cannot go 

below that.’’ 

Mr. CONYERS. Professor Otis, you sound more reasonable this 

morning than I could have had any right to expect, and I thank 

you for your response. 

Mr. OTIS. I apologize. 

Mr. CONYERS. Please don’t. 

Mr. GOHMERT. At this time we will recognize the gentleman from 

Alabama. Mr. Bachus is recognized for 5 minutes. 

Mr. BACHUS. Thank you. 

I noticed that there was general agreement that we ought to 

focus first on the kingpin, the organizer. And I think we all agree 

maybe with Mr. Evenson that, to do that, you have to get cooperation from someone down the line. 

With that in mind, I want to ask you about—the Attorney General back—August of last year directed U.S. attorneys in a criminal 

division to—and he was talking about Title 21, the safety valve, 

how you could not charge if certain elements were there. And he 

said, ‘‘If these elements aren’t there, this is what you can—you 

don’t have to charge.’’ 

One element that had existed before that was cooperation, but he 

dropped that one. So you can deviate even though there is unwillingness to cooperate. So that is not even taken into consideration. 

Were you aware, Mr. Evenson or Mr. Otis, that there was a 

change made? He also—he elevated the number of points. 

Mr. EVENSON. Congressman, I am aware of the August 2013 

memo. Essentially, prior to that time, prosecutors were authorized 

to file what is called an 851 enhancement in every drug case. 
79 

That is, essentially, if a drug dealer is arrested and he has a 

prior drug felony conviction, a notice is filed with the court that basically doubles the minimum mandatory. That particular tool has 

been very effective in gaining cooperation. That is one of the tools 

that we have used. 

Now that tool has been greatly modified for assistant United 

States attorneys, and only in certain cases are we authorized to file 

that. 

Also, there was in the memo that we are not to put the drug 

quantities in the indictment which trigger the minimum mandatory. 

Mr. BACHUS. Right. 

And, you know, it gives criteria when you don’t put them in 

there. It is just general—you don’t put them in unless these things 

are present, like violence. 

Mr. EVENSON. In effect, the minimum mandatories have been 

done away to a large extent by that memo. 

Mr. BACHUS. And used to cooperation was one of those things 

that you could consider, but then—I guess you still can. 

But what I am saying, the safety valve, the current—you know, 

according to this memo, even if they are not cooperating and they 

could—they could finger somebody, you still—you know, that is 

not—— 

Mr. EVENSON. You are exactly—— 

Mr. BACHUS [continuing]. That was the one thing that was 

dropped. 

Mr. EVENSON. You are exactly correct. 

5C1.2 says, if you have a dealer with not any real record and he 

tries to cooperate, but doesn’t come up to the level of a substantial 

assistance, there is no violence, then the court can come underneath minimum mandatory. Now that is not even necessary that 

he cooperate. 

Mr. BACHUS. It just seems like that—you know, it goes against 

that philosophy. 

Mr. STEVENSON. Just on that point, Mr. Bachus, typically, the 

charging decision is made before there is any opportunity to assess 

cooperation. And even in those cases, cooperation can still be considered in terms of recommendation. 

Mr. BACHUS. Well, I think, you know, if you make the decision 

before you charge, it is more effective, the cooperation, because the 

kingpin doesn’t know sometimes what is going on. 

Mr. STEVENSON. Well, the only point I would make is that the 

range of sentencing is still extremely broad, extremely broad, and 

I think the data would support that most cases are going to plead. 

Mr. BACHUS. Yeah. I just found that strange, that the cooperation was the one that was totally dropped out. You know, to me, 

it is—let me ask one that is not in here that I think ought to be 

considered, and that is age of the offender. 

You know, nowhere in these guidelines does it talk about age of 

the offender, and I think that is one of our biggest problems. You 

know, an 18- or 19-year-old is quite different from a 23- or 24-yearold. A 30-year-old is tremendously different, his judgment. 

Particularly, I have five children, two girls and three boys, and 

the boys mature a little later, I mean, you know, in most cases. I 
80 

hope I don’t hear about that. But, you know, there—I can say my 

18-year-old at 30, after 4 years in the Marines, has much better 

judgment. 

But anybody want to comment on whether we ought to take that 

into consideration? 

Mr. STEVENSON. Yes, Mr. Bachus. I will comment on that. 

I absolutely agree. And I think most states are actually moving 

in that direction where they are actually reintroducing age as an 

important factor, particularly when you start talking about drug 

conspiracies. 

Because what a lot of these kingpins do is they actually look for 

young, little kids, some as young as 13 and 14 years of age, where 

they have enormous influence over them, and they acculturate 

them into these behaviors. 

And right now judges and prosecutors don’t have the discretion 

to consider the fact that this kid was brought in at 13 and 14 and 

stayed in for 4 or 5 years. I absolutely agree. 

And the Supreme Court has actually issued a couple of decisions 

that I think would support this Congress and Task Force in taking 

steps to now recognize the importance of age when it comes to culpability and sentencing. 

Mr. EVENSON. Congressman, I will say that most of the offenders 

that we charged were in their 20’s. A juvenile in Federal court is 

under 18. We have to get Department approval. 

I will tell you one example, that we had one drug dealer who was 

involved with an organization in our district and we had to charge 

him with two murders and, after we did the debriefing, he told us 

he had committed four others. So he was 19 years old. 

Mr. BACHUS. Yeah. And I am not talking about murder. But I am 

talking about a drug—a 21-year-old is just a different person when 

he is 30, in most cases. 

I mean, they are just almost two different people in many cases, 

particularly if he hasn’t had some of the supervision that other 

children do. 

Mr. GOHMERT. Thank you very much. 

At this time Mr. Scott indicates he will still yield. 

And Mr. Jeffries from New York, you are recognized for 5 minutes. 

Mr. JEFFRIES. Thank you, Mr. Chair. 

And I thank the distinguished panel that has appeared before us. 

And, Professor Stevenson, it is great to see you. 

I want to start with Professor Otis. 

Criminal justice is largely the province of 50 States. Is that correct? 

Mr. OTIS. Yes, it is. 

Mr. JEFFRIES. And that is consistent, of course, with the constitutional landscape and the fact that prevention of crime wasn’t necessarily an enumerated power given to Congress. It was left to the 

State. And the 10th Amendment obviously factors into that. 

And the majority of individuals who are incarcerated in this 

country right now are in the state penal system. Is that correct? 

Mr. OTIS. That is also correct. Only about 217,000 are in the Federal law prisons. 
81 

Mr. JEFFRIES. So the State experience is a relevant indicator of 

what could potentially happen if criminal justice reform occurs. 

Correct? 

Mr. OTIS. That is correct, with a qualification. And the qualification is one that I would say I built on Mr. Evenson’s experience as 

well as my own as an assistant U.S. attorney. 

The Federal prison population is not like the State prison population. The States turn over to the Feds the really tough, broadranging conspiracies. 

And the kind of people you find in Federal prisons are the ones 

the State didn’t have the toughness or the resources or the sentencing system to deal with. 

Mr. JEFFRIES. Okay. That is interesting, because about 50 percent of the Federal prison population actually constitutes non-violent drug offenders, many of whom did not have a prior criminal 

record or engaged in violent criminal activity prior to them being 

incarcerated in Federal criminal prison. 

Is that correct, Mr. Stevenson? 

Mr. STEVENSON. That is correct. 

Mr. JEFFRIES. In fact, about 10 percent of the prison population 

in the Federal system actually are violent offenders. In fact, I think 

that is less than 10 percent. 

Mr. Stevenson, is that correct? 

Mr. STEVENSON. That is correct. 

Mr. JEFFRIES. So the premise that the Federal system is somehow different in nature and is filled with kingpins and mafia lords 

and terrorists is just inconsistent with the facts. 

Is that fair, Mr. Stevenson? 

Mr. STEVENSON. Yes. And the U.S. Sentencing Commission has 

made that point repeatedly in its assessment of who is doing time 

in the Federal system. 

Mr. JEFFRIES. So I think it is clear there is no real difference between the individuals in the State penal system and the individuals in the Federal penal system. 

And so I would argue, since the majority of individuals are actually in the State penal system, that the State penal system experience, in terms of criminal justice reform, is instructive. To me, that 

seems like a reasonable premise. 

But, Mr. Levin, does that seem fair? 

Mr. LEVIN. I think it is. 

There are obviously some differences in the composition, but, 

frankly, those have lessened over the years as more and more, 

frankly, low-level street-corner drug offenders have ended up in the 

Federal system. 

And I would also say one of the provisions of the Smarter Sentencing Act would say you could have two criminal history points 

instead of one and still be able to get this benefit of the safety 

valve. 

Now—but in order to get the safety valve, you have to cooperate. 

And so that would actually increase the incentive to cooperate for 

more people. Right? Because now, if you have at least two criminal 

history points, you can’t get the safety valve anyway. 

Mr. JEFFRIES. Let me stop you there because my time is limited, 

but I appreciate that observation. 
82 

Now, 29 States, as Mr. Stevenson pointed out, have limited or restricted mandatory minimums. And I would think, based on some 

of the testimony that we have heard today, that that perhaps 

would have resulted in a crimewave being unleashed on the good 

people of America in those 29 States. 

Has that been the experience, Mr. Stevenson? 

Mr. STEVENSON. No, it is not. And as was indicated, some States 

have actually seen dramatic increases in their crime reduction 

after the passage of these reforms. 

Mr. JEFFRIES. Okay. Mr. Otis, are you familiar with the Rockefeller Drug Laws that were first put into place in New York State 

in the 1970’s? 

Mr. OTIS. Generally, but not in specifics. 

Mr. JEFFRIES. Okay. And it is widely understood that these were 

some of the most restrictive, punitive drug laws anywhere in this 

country. Correct? 

Mr. OTIS. I would have to defer to you. 

Mr. JEFFRIES. Okay. Mr. Stevenson, is that correct? 

Mr. STEVENSON. That is correct. 

Mr. JEFFRIES. Okay. Now, these are some of the toughest, most 

draconian mandatory minimums related to non-violent drug offenders. 

In 2009, I was in the State legislature. I was pleased to be part 

of the effort to dramatically reform those Rockefeller Drug Laws. 

This happened in 2009. 

Are you familiar with that, Mr. Otis? 

Mr. OTIS. I am not. 

Mr. JEFFRIES. Okay. Well, it occurred. 

Are you familiar with that, Mr. Levin? 

Mr. LEVIN. Yes, I am. 

Mr. JEFFRIES. Okay. Now, again, based on this premise, I would 

assume in New York State that a dramatic crimewave, as some argued would have occurred as a result of the reforms that took 

place, would follow. 

Is that what took place in New York State, Mr. Otis, or did the 

crime actually continue to decline subsequent to the repeal of the 

Rockefeller Drug Laws in New York, as has been the experience in 

every other State that has changed or reformed its mandatory 

minimums? 

Mr. OTIS. My answer to that is going to be a little bit long, but 

you have to forgive me. I am a law professor, after all. 

The answer is that, yes, in the States that have experimented in 

this way, crime has continued to decline, but that is because imprisonment and the use of imprisonment, while very significant, 

probably the most significant factor in the overall decrease in crime 

in this country in the last 20 years, is only one factor. 

Other factors are at work as well, and those factors have continued to be in play, other factors like hiring more police, better police 

training, better private security measures, better EMT care to reduce the murder rate, for example. 

So while it is true that crime has continued to decrease, the decrease has been at a lower rate in the States in which they have 

tried this. And the best example is California. 

Mr. JEFFRIES. My time is expired. 
83 

But let me just make the observation one of the reasons that 

States have been able to invest resources in those other areas that 

you enumerated is because, when you reduce the prison population, 

you reduce the State budgetary burden and you can actually invest 

in things that have been empirically proven to lower crime. 

I yield back. 

Mr. GOHMERT. Thank you, Mr. Jeffries. 

At this time we would move to the gentleman from North Carolina. Mr. Holding, is recognized for 5 minutes. 

Mr. HOLDING. Thank you, Mr. Chairman. 

Mr. Evenson, I would like for you to give us some, you know, real 

line—real life, frontline context. 

First, you know, just to establish—you know, in your 20-plus 

years as a prosecutor, most of that as a drug prosecutor, how many 

drug defendants do you think you have prosecuted and who have 

been prosecuted under your supervision? Just a general number. 

Mr. EVENSON. I had my own caseload while I was supervising a 

drug unit. I would say I have done hundreds myself over that period of time, but we have done over those years thousands. And we 

specifically went after the biggest organizations by using the techniques I described earlier. 

Mr. HOLDING. So in the thousands of drug defendants that you 

have personally dealt with, how many of those were low-level, nonviolent drug offenders? 

Mr. EVENSON. Well, let me just say this. I hear the term ‘‘nonviolent’’ thrown around. 

Mr. HOLDING. Is the trafficking of drugs a violent crime? 

Mr. EVENSON. It is by its very nature. 

You show me a city with a violence problem, and I will show you 

an underlying drug-trafficking problem. With drugs comes guns 

and violence. It is the nature of the game. They don’t take their 

problems to court. They enforce it at the end of a gun. 

And any sheriff in my district, they would tell me—because I 

knew them all—I had 44 counties—their biggest problem was 

drugs and drug-related crime. That is what they were focused on, 

if they could get that problem solved. 

So I don’t accept the term ‘‘non-violent’’ when it comes to drugs. 

These organizations are, by their nature, drug—and the higher 

they get, the more—— 

Mr. HOLDING. But drug trafficking is a crime of violence? 

Mr. EVENSON. Yes, sir. It is. 

Mr. HOLDING. I mean, by statute, it is a crime of violence. 

Mr. EVENSON. And I am just going to say this right now. I have 

an opportunity. 

Law enforcement does not have a war on drugs. We have a war 

on drug traffickers. We seize drugs and we arrest traffickers. That 

is our mission. And we represent many of these people in these 

poor communities of color who are victimized by that. 

Mr. HOLDING. I want you to focus in on—another Member of the 

Task Force pointed out that, you know, law enforcement prosecutors can choose the communities in which they go into and—you 

know, to look for crime and prosecute crime. 

Talk about some of those communities that you have been a part 

of going into and trying to eradicate drug trafficking. 
84 

Mr. EVENSON. Congressman Bachus a moment ago asked me a 

question, and I didn’t get to finish. 

One example: We had a community where a drug dealer had 

been selling for years. He had a fence around his yard. He had 

high-dollar vehicles. He had four of them. He had built an addition 

on his house. 

And there was a photo of one of my agents driving one of these 

high-dollar vehicles out of the driveway. 

He said, ‘‘Eric, you see that picture?’’ 

I said, ‘‘Yeah.’’ 

He said, ‘‘You know what happened when I drove it down the 

street?’’ 

I said, ‘‘No.’’ 

He said, ‘‘The neighborhood had come out on the street and they 

were clapping.’’ 

And this was a bad, violent drug dealer. And that’s the kind of 

people that we represent. 

Mr. HOLDING. That is, when the agent drove down the street, the 

neighborhood came out and clapped? 

Mr. EVENSON. It was a Corvette. He took the Corvette out of the 

driveway. And he said, ‘‘Right as I turned and went down the 

street, they were lined up, clapping.’’ 

You know, we represent some of the most vulnerable people, the 

poor, the elderly, the young, the addicted, and they have no voice. 

They have no way to sell their home and move away when a drug 

dealer sets up shop in a neighborhood and the property values 

drop. 

So, quite frankly, I am personally offended when I hear charges 

of racism. The laws are race neutral. We go where the battle is hottest. We represent people who are victimized by this activity. It 

doesn’t make any difference what neighborhood it is. 

I have never prosecuted anybody on the basis of race and neither 

has any AUSA. The Department of Justice does not prosecute anybody on the basis of race. We have to go where the evidence leads 

us, and that is where we go. 

Mr. HOLDING. Thank you. 

Mr. Chairman, I yield back. 

Mr. GOHMERT. Thank you. 

At this time the Chair recognizes the gentleman from Tennessee, 

Mr. Cohen, for 5 minutes. 

Mr. COHEN. Thank you. I appreciate the opportunity. I apologize 

for being late. A couple of post-midnight sessions, whatever. 

I walked in, Mr. Evenson, to hear you say something that just 

was incredulous, that there is not a war on drugs. You said there 

is a war on drug dealers. 

Is that what you said, something to that effect? 

Mr. EVENSON. Yes, sir. I did say that. 

Mr. COHEN. And you said that the laws are race neutral. You 

said the laws are race neutral. 

Mr. EVENSON. Yes, sir. They are. 

Mr. COHEN. Nobody denies the fact that the laws are race neutral. But the fact is the implementation of the laws is not race neutral and it is racial profiling. All laws are race neutral since 1865, 
85 

except in the South, which went to 1963. Then they were not race 

neutral. 

But the implementation by people under color of law who arrest 

eight times more African Americans for possession of marijuana 

than White is not race neutral. Is that not a reality? 

Mr. EVENSON. Congressman, I understand there is a lot of statistics being thrown around. But—— 

Mr. COHEN. Yeah. Like the 99 percent of the people believe in 

climate change, and some of the people go with the 1 percent. We 

will go back to the statistics. 

Mr. EVENSON. Sir, I cannot argue the statistics. 

All I can tell you is, on a daily basis, I deal with drug agents that 

are Black, White, Indian. I have drug dealers that are Black, 

White, Indian in our district. We have prosecuted wherever the evidence led us. 

Mr. COHEN. I don’t deny you don’t prosecute them. I understand 

that. I am saying arrest. And a lot of it is street-level arrests. 

You are a Federal prosecutor; are you not? 

Mr. EVENSON. Yes, sir. And uniformed patrol is unable to stop 

this problem. It has to be investigators. They can’t do anything in 

uniformed patrol. They just pick up a person with possession, and 

it ends there. 

Mr. COHEN. Do you believe that marijuana is less dangerous to 

our society than meth, heroin, crack, and cocaine? 

Mr. EVENSON. Well, the laws indicate that. Yes, sir. Meth is 

highly addictive. 

Mr. COHEN. The laws don’t indicate that. Marijuana is a Schedule I drug, the same as heroin and LSD. That law does not indicate 

it. 

Mr. EVENSON. In our courtroom, it is treated differently, I can 

tell you that. Methamphetamine is instantly addictive. 

Mr. COHEN. I agree with you. That’s right. 

And you might be the best in your courtroom. I don’t know. But 

I—and I hope you are. But you’re right. You need to go after meth 

and heroin and crack and cocaine. 

Mr. EVENSON. We do that, sir. 

Mr. COHEN. How about marijuana, though? 

Mr. EVENSON. Well, marijuana—some of the most violent dealers 

that I have experienced were marijuana growers. 

Mr. COHEN. Because it is illegal and they are violent when the 

police come—in or the DEA to try to bust them. So it is not just 

that they are like malum in se. They are not violent in se. They 

are violent because of the laws. 

Mr. EVENSON. Well, I have been threatened by marijuana growers. 

Mr. COHEN. Right. 

Mr. EVENSON. They want to do their thing. 

Mr. COHEN. If it was legal, do you think they would threaten 

you? They threaten you because it is illegal. 

Mr. EVENSON. Well, that is a different question, Congressman. I 

am just telling you my experience. 

Mr. COHEN. I got you. 

And when alcohol was illegal—I mean, Al Capone and Frank 

Nitti and all those guys we watched on ‘‘The Untouchables,’’ Robert 
86 

Stack—I mean, they were bad guys, but now they are wholesalers. 

They are nice guys. You know, it is just a matter of how you flip 

it. 

Do you think that the—you support mandatory minimums, I understand. 

Mr. EVENSON. Yes, sir. We need those. We really need those. 

Mr. COHEN. Do you think that there are mistakes with mandatory minimums sometimes when the judge tells us so many times 

that there are situations where they didn’t want to sentence this 

person to life when maybe the third offense that triggered or something was some minor thing or there was some nice woman who 

was involved with a man who led her astray, like Ms. Smith, who 

wrote a book? She served 61⁄2 years, got pardoned—or commuted 

by President Clinton. She is a wonderful woman. Her son is at 

Washington and Lee. 

Mr. EVENSON. Congressman, as long as we have human beings, 

there are going to be mistakes. But I can tell you that our system 

now is so regulated from the time they appear before a magistrate 

to a Federal judge, to the appeal process, that every case is scrutinized. 

I would say those kind of cases are rare. Every defendant is 

given a chance, in my experience, to provide assistance so that I 

can go to bat and tell the judge—— 

Mr. COHEN. She was provided assistance. And the guy that led 

her into it was out in northwest Washington state, and he was 

murdered. So she couldn’t provide assistance anymore. 

So they put her in jail and they put her in prison for a long time. 

And if it weren’t for President Clinton, she might still be there. Because you can’t provide assistance doesn’t make your incarceration 

more just. 

Mr. EVENSON. Well, there may be a case like that. But there is 

an old saying in law school that hard cases make bad law. And 

right now the law works. It has worked to remove a lot of drug organizations in America. 

Mr. COHEN. Well, how do you think that the experiment in Colorado and Washington is going? 

Mr. EVENSON. I don’t know, sir. 

Mr. COHEN. Mr. Stevenson, do you have anything you want to 

add? 

Mr. STEVENSON. Well, I just want to emphasize that these exceptions, these extreme bad cases, I think should not inform what this 

Committee’s Task Force does. We have a lot of data to tell us how 

to look at the system. 

And the truth of it is communities of color are not celebrating 

mandatory minimums. I think we really need to be sober about the 

impact of these laws on vulnerable populations. 

I am not suggesting that individual officers go out with racist intent, but there is a real difference in how easy it is to prosecute 

people in communities where you have to do your drug dealing on 

the streets as opposed to communities where you actually have the 

resources to do it covertly. And I think, if we don’t acknowledge 

that, we are going to contribute to this problem of extreme racial 

disparity. 
87 

Then the other point. I think you are right to emphasize that the 

way in which our system identifies who is bad, who is violent, is 

going to be shaped by the way we characterize and direct these 

laws. 

If we eliminate mandatory minimums, it will not, in my judgment, eliminate or even restrict our ability to go after bad kingpins. We can still do that. 

Nobody is talking about shielding drug dealers or drug traffickers from arrest and prosecution. What we are talking about 

doing is protecting people who are sometimes caught in the web 

and sometimes end up with these very unjust sentences. 

Mr. COHEN. Thank you. And I yield back. 

Mr. BACHUS. Most bank robbers aren’t violent unless you try to 

stop them. 

Mr. GOHMERT. Gentleman is not recognized at this point. 

Mr. COHEN. Willie Sutton was a sweetheart. 

Mr. GOHMERT. The Chair will recognize himself for 5 minutes. 

Thank you. 

I really appreciate the level of commitment here. Obviously, we 

have got people that are quite familiar with the system. 

I am also pleased that we have such an experienced group on 

this Task Force, people that have dealt with the law in so many 

respects. 

Having been a state judge and a chief justice at a State Court 

of Appeals, we used different terminology. And so, when I hear an 

immediate adverse reaction to mandatory minimums—in the State, 

we called it a range of punishment, and it seemed perfectly appropriate for the legislature to say, you know, for these crimes, state 

jail felony—and I was a felony court—this is the minimum, 0 to 2 

years for state jail felonies; 2 years to 10 years for a third-degree; 

2 to 20. But you add that bottom level. 

Now, if you—and first degree, 5 to 99 or life. And then, of course, 

if you enhanced it up with prior convictions, then you could—I 

think there was a guy arrested for stealing a Snickers at one point, 

and that runs into strange facts when you have got a guy looking 

at maybe a mandatory 25 years because of enhancements. 

But it seems like we could deal with the areas in which there are 

great injustices without totally eliminating floors. 

Although most judges I know would be fair and try to act fairly 

within a proper range, I am old enough to remember before the 

Sentencing Guidelines back when Federal judges actually got mad 

that they were having discretion taken away. 

I was shocked when I started having more Federal judges say, 

‘‘Well, we kind of like it. We don’t have to make such tough decisions. The Sentencing Guidelines tell us what we want to do.’’ 

Mr. Evenson, I cut you off twice when you seemed to be ready 

to proceed further, and I have got time. 

Anything that you were wishing to illustrate that you didn’t have 

time to do earlier? 

Mr. EVENSON. Well, thank you, Your Honor. 

I just want to emphasize on behalf of the over 5,000 assistant 

United States attorneys that I read the comments that they provided on this legislation. We had a survey, and I read it again this 

morning. 
88 

And if you could hear and see those statements, I think you 

would be amazed at how profound reducing the minimum 

mandatories would be on our ability to do our job. We will not be 

able to go after the biggest drug dealers unless we have witnesses. 

And, as I said, this is a hard, mean business we are in. We need 

the inducement to allow conspirators to testify, and they do that. 

They have to make a decision. It is a go or no-go situation. 

And there with their lawyer they decide, ‘‘All right. My drug days 

are over.’’ We build a rapport with them, and they tell us everybody that they have been getting their drugs from. 

And they are willing to testify. Oftentimes they don’t have to testify, but they are told, ‘‘We don’t care what you tell us, as long as 

you tell us the truth.’’ And most of them do, and those that don’t 

go off to prison. 

And I had a lawyer tell me one time—he said, ‘‘You know who 

is in Federal prison? Those who cooperated and those who wished 

they had cooperated. Those are the two people in Federal prison.’’ 

We need the ability to negotiate. And the sentences are fair. We 

are not prosecuting users. We are not prosecuting marijuana users. 

That is a myth. 

We are prosecuting people, for the most part, who have prior convictions and are dealing in significant quantities over a long period 

of time. That is why we have conspiracies that run 1, 2, 3, and 5 

years. 

That was the thing that amazed me when I went to Federal 

court. You could actually charge somebody with an agreement that 

lasted that long period of time, but the jury gets to see the whole 

story then. It’s not just a search on a drug house. 

So that would be our statement, Congressman. I appreciate the 

time. 

Mr. GOHMERT. Anybody else wish to comment on Mr. Evenson’s 

reflection? 

Go ahead, Mr. Otis. 

Mr. OTIS. I have two comments on it. 

One is—I apologize for interrupting Mr. Levin. 

And you will have your chance. 

One of the things we need to do is go by our experience. Mr. 

Levin has pointed out that there has been the experience of, I 

think, 16 or 17 States that over the last few years have reduced 

or eliminated mandatory minimum sentencing and have not seen 

an upsurge in crime. 

I would point out two things. 

He omitted talking about California, which has had as many premature prison releases as the rest of the States combined. 

The reason for that is California is acting under the Supreme 

Court’s Plata decision that required early releases in order to reduce the prison population to make prison conditions constitutional. 

What has happened in California, again, which has had as many 

premature releases as the rest of the States combined, is that 

crime has gone up, that that is not accounted for. 

The other thing I would say is that we can look beyond the experience of 17 States over a few years and look to the experience of 
89 

50 States over 50 years. We know what works, and we know what 

fails. 

What fails is what we had in the 1960’s and 1970’s, when we had 

a feckless and unrealistic belief in rehabilitation and not really a 

belief in incarceration. That failed. What works is what we have 

done for the last 20 years. 

Mr. GOHMERT. My time is well expired. 

Let me recognize the gentleman from Virginia. 

Mr. LEVIN. Well, can I just briefly respond? 

First of all, with regard to California, I believe the reason they 

got in that situation is policymakers there failed to act proactively. 

That is why we have been working with legislators around the 

country to address prison crowding in a prospective way, in a way, 

for the Democratic process, so you don’t invite Federal court supervision. 

So I think California illustrates why we need to tackle this Federal prison overcrowding issue up-front rather than leaving it to 

unelected—Supreme Court or other judges. 

I would also say one of the reasons I think we have seen the experience with the Rockefeller Drug Laws, as you mentioned, with 

the drug reform in South Carolina and other States not leading to 

an increase in crime is we know that the research has shown staying longer in prison does not reduce recidivism. 

Prisons do one thing well, which is incapacitate, which, obviously, with murderers, serial rapists and others, is exactly what’s 

needed. 

But with people that have a drug problem—and many of these 

people who are dealing small amounts of drugs on street corners 

also have a habit themselves—if we can correct that habit and get 

them into a productive, law-abiding role as a citizen, including 

through appropriate supervision after release, which we are not investing in on the Federal level, I think then we can continue to 

drive down the crime rates in this country. 

Mr. GOHMERT. Thank you. 

At this time we recognize Mr. Scott for 5 minutes. 

Mr. SCOTT. Thank you. 

And I thank all of our witnesses. 

Mr. Stevenson, you indicated that penalties do not affect drug 

use. 

Is there any evidence that the 5-year mandatory minimum for 

small amounts of crack when we had the 100-to-1 disparity encouraged people to instead use powder where they can have 100 times 

more powder? Is there any indication that people would say, ‘‘Oh, 

I am not going to use the crack. I am going to use the powder’’? 

Mr. STEVENSON. No. I think anybody who has worked with this 

population knows that, very sadly, they are driven by an addiction, 

by a disorder, that is actually shaping their choices. They are not 

worried about tomorrow. They are not worried about the next 

week. 

Most of them couldn’t even tell you what the penalties are. And 

I think, until we recognize that, we are going to be misdirecting a 

lot of our resources. 

Mr. SCOTT. And if your goal is to reduce drug use, you mentioned 

a public health approach? 
90 

Mr. STEVENSON. No question. A lot of countries have actually invested in interventions and many States have also used drug 

courts where they authorize treatment and supervision. 

I just want to emphasize this point about supervision, which has proved to be very effective. If you spend $50,000 a year to keep 

somebody in prison, that money doesn’t accomplish very much. If you spend $10,000 a year to take somebody who has just been 

released from prison and make sure that they are actually complying with very strict guidelines around treatment and services, 

allowing them to move forward to get a job, et cetera, not only are 

you spending less money on that person, you are dramatically increasing the chances that they are actually not going to recidivate 

or continue to be a drug user. 

We have got lots of data from lots of countries that talk about 

these public health approaches that have radically reduced drug 

addiction and improved the health of these communities. 

Now, I am very sensitive to communities that have been 

highjacked by drug addiction and drug abuse. The interventions 

that are around health care models are the interventions that have 

had the biggest impact on the health of those places. 

Mr. SCOTT. Mr. Levin, I understand that your organization, 

Right on Crime, takes the position that there are more cost-effective ways of reducing crime than waiting for people to get arrested 

and get into a bidding war as to how much time they are going to 

serve. 

Have you seen the research that incarceration rates over 500 per 

100,000 are counterproductive? 

Mr. LEVIN. Yes. I think what the case is is that you reach a point 

of diminishing returns when it comes to incarceration rates. 

And that is, number one, because you are sweeping in too many 

non-violent and low-risk offenders into prison, and, number two, 

people are serving longer than necessary. 

Mr. SCOTT. Let me ask you a question on that point, then. 

If anything over 500 per 100,000 is counterproductive and ten 

States are locking up African Americans at the rate of 4,000 per 

100,000, if in a community of 100,000 with that kind of lockup rate 

you reduced it to the 500, at which you stop getting any kind of 

return, you have 3,500 fewer people in prison at, say, 20,000 each, 

that is $70 million. 

Are you suggesting that that community could actually reduce 

crime more by spending that $70 million productively in a public 

health model, education, after-school programs, getting young people on the right track, keeping them on the right track, than they 

could just locking up 3,500 extra people? 

Mr. LEVIN. Well, I think it is difficult to look at kind of setting 

arbitrary rates or cutoffs. Obviously, States have different crime 

rates and so forth. 

But I would say that certainly, once you do—Professor Steve 

Levitt, who has written ‘‘Freakonomics,’’ he looked at it. And John 

Dilulio, who signed our Right on Crime Statement of Principles, he 

was one of the biggest backers of increasing incarceration a few 

decades ago. 

And what they have said is we have reached a point of diminishing returns and, in fact, potentially in some places, negative re-
91 

turns by the sense that you could be using that money to put another police officer on the street doing some of the things they have 

done in New York City and other places where they are actually 

able to deter crime through a greater presence of officers in the 

right places, targeting those hot spots. 

So I think that—and, as you said, we have talked about problemsolving courts, a whole range of other approaches, electronic monitoring and so forth. 

And so I think that we really—without necessarily getting into 

arbitrary caps, we have got to—what we have seen in States is, because so much of the money—90 percent of State corrections budgets are going to prisons—the resources are not there often for these 

alternatives. 

So it is a matter of realigning our budgetary priorities and making sure people don’t go to prison simply because we haven’t provided the alternatives. 

Mr. SCOTT. Well, we have heard you need these bizarre sentences 

to fight the war on drugs. 

How is imposing sentences that violate common sense helpful to 

the war on drugs? 

Mr. LEVIN. Well, I think we—as you said, half of all high school 

students have tried illegal drugs. We have got to have a broader 

approach that looks at prevention, that looks at substance abuse 

treatment where there is many advances being made. 

And I really think that certainly we know that undoubtedly drug 

dealers replace one another. So simply the problem is too broad to 

solve just by taking what are unfortunately a small number of the 

total people dealing drugs and putting them in prison for incredibly 

long sentences. 

And, as we have said, these people are still going to be going to 

prison 97 months on the crack cases even after the disparity was 

narrowed. We are just talking about—— 

Mr. SCOTT. When Mr. Evenson says that he can’t deal with these 

people, these people are not—he makes it sound like he doesn’t 

have any leverage over the people. These people are going to jail, 

just not on bizarre sentences. They would be going to jail on fair 

sentences. 

Mr. LEVIN. Right. 

And the question is: Is the last year or 2 of the 8 years or 10 

years or 15 years—is that last year getting us that much mileage 

relative to what else we could be doing with those resources? 

Mr. GOHMERT. Thank you. 

Let me just comment. We had submitted Chairman Sensenbrenner’s statement for the record. He does point out things on 

which I would hope we would all agree that this Task Force has 

taken up. Rather unusual to see ACLU, Heritage Foundation, liberal and conservative groups joining together. 

But we have a lot of agreement with regard to issue of mens reas 

requirement for offenses. We have got—and it was mentioned earlier. We really should have these codified into one code instead of 

having 4,500 or 5,000 Federal crimes where a prison sentence was 

added simply to show Congress was tough on some issue when 

maybe it was a clerical error and it shouldn’t have gone that route. 
92 

*This submission included a compilation titled ‘‘Amendments to the Sentencing Guidelines.’’ 

The compilation is not reprinted in this hearing record but is on file with the Task Force and 

can be accessed at http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendlyamendments/20140430lRFlAmendments.pdf. 

**This submission included a report titled ‘‘An Offer You Can’t Refuse, How US Federal Prosecutors Force Drug Defendants to Plead Guilty.’’ The report is not reprinted in this hearing 

record but is on file with the Task Force and can be accessed at http://www.hrw.org/reports/ 

2013/12/05/offer-you-can-t-refuse. 

***The item referred to is not reprinted in this hearing record but is on file with the Task 

Force and can be accessed at https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf. 

So there are many things that we agree on that we really need 

to deal with. And we really appreciate all of your input on this 

issue of mandatory minimums, or what I might call a range of punishment. 

And you may have other thoughts as you leave. I know I always 

do: Gee, I wish I had said this, that or the other. So if you wish 

to have—we provide Members 5 legislative days to submit additional written questions for the witnesses or additional materials 

for the record. 

Let me just say, if you have additional information that you 

think of after you walk out, that ‘‘I wish I had said that,’’ we would 

welcome that being submitted in writing for our review, and it will 

certainly be reviewed. 

The Ranking Member has a comment. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I would ask unanimous consent that letters and testimony from 

the U.S. Sentencing Commission;* Justice Strategies; Families 

Against Mandatory Minimums; the Leadership Conference on Civil 

and Human Rights; the Brennan Center for Justice; the Judicial 

Conference that often reminds us that judges are often required to 

impose sentences that violate common sense; the Human Rights 

Watch;** the ACLU;*** and the Sentencing Project article in The 

Hill all be entered into the record. 

Mr. GOHMERT. Without objection, that will be done. 

[The information referred to follows:] 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 
112 
113 
114 
115 
116 
117 
118 
119 
120 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 
146 
147 
148 
149 
150 
151 
152 
153 
154 
155 
156 
157 
158 

Mr. GOHMERT. And, again, if you have additional materials—any 

of you—that you feel would be helpful to this Task Force, we will 

welcome those. And the record will be open for 5 days. 

Mr. Cohen. 

Mr. COHEN. If I could just ask one other question. Would you 

mind? 

Mr. GOHMERT. Without objection. 

Mr. COHEN. Thank you. 

I am just guessing. I haven’t seen—Mr. Otis, I think you have 

got the most experience here. I think you are maybe the only person here older than me. I think 1968 is when you graduated. 

Mr. OTIS. You look like a youngster to me. More and more people 

do these days. 

Mr. COHEN. I know. It is all relative. 

You have been doing this for a long time, and you were at DEA. 

If I am wrong in my opinion, tell me. But from what I see, the drug 

war over all those years hasn’t changed at all as far as the American appetite for drugs, the American appetite for marijuana, for 

crack, cocaine, meth, whatever, Ecstasy, Oxycontin, whatever. 

And our process has been the same, arrest people, mandatory 

minimums, flip them, put them in jail, put them in jail for a long 

time. It hasn’t worked. 

Is the system basically in the same place it has been? Do you feel 

like a rat going along in a cylinder there? Don’t you think we ought 

to just kind of come out of it and go, ‘‘In 40 years, don’t we need 

a new theory or a new way to do this?’’ 

Mr. OTIS. What the statistics show is that drug crimes are intimately related with other kinds of crimes, with property crimes 

and with crimes of violence. 

And we know from the statistics that those crimes have gone 

down substantially; so, I don’t think it is correct to say that it 

hasn’t worked. 

In addition to that, in order to know whether specifically drug 

laws have worked, we would need to know what the state of play 

would be if they had not been enforced. 

And the great likelihood—because the drug business, I think, has 

been misapprehended in some of what is going on today. The drug 

business—unlike other kinds of crime, the drug business is consensual. So there is not a crime scene and a victim in the same sense 

that there is in other kinds of crime. 

We have talked a lot today and you have talked—and correctly 

so—about violence and whether we have seen an increase or decrease in violence when some States have released drug defendants 

early. But violence is not the only thing we need to care about 

when we are talking about drugs. 

We need to care also about harmfulness. Because the drug business is consensual—for example, the actor Philip Seymour Hoffman 

who recently died of an overdose, he died as a result of a consensual drug transaction, as almost all drug transactions are. 

But he and the other 13,000 heroin addicts who die each year are 

equally dead, whether it is consensual or whether there has been 

violence. 
159 

We need to stomp out the harm that comes from the drug trade, 

a harm that is one of most destructive, particularly in minority 

communities, that is going on in the United States today. 

Mr. LEVIN. Would you mind if I added one thing? 

Mr. GOHMERT. Go ahead. 

Mr. LEVIN. With regard to heroin, since 1990, the purity has 

gone up 60 percent. The price has dropped 81 percent. So it does 

indicate what we are doing with regard heroin is tragically not 

working. 

And I think we—obviously, those who—particularly kingpins 

dealing heroin and other hard drugs should go to prison. 

But what we need to do is, as I said, take a broader approach— 

there is pharmaceutical advances that are treating heroin addiction—and, also, recognize prescription drugs. 

Even with the increase in heroin recently, prescription drug 

abuse is far more common than heroin abuse. And so I hope we can 

also focus on that as well. 

Mr. COHEN. Mr. Chairman, thank you. 

I think what I got out of that is that what we need to do is— 

Huey Lewis probably had the answer about a new drug. We need 

to find a drug that is not addictive and not harmful, but still pleasurable, and we need to put the NIH to work on it tomorrow. 

Mr. GOHMERT. Well, I always thought that was what we called 

glazed doughnuts. 

Mr. Bachus, you asked unanimous consent. 

Mr. BACHUS. Thank you. 

Unanimous consent. And Professor Otis sort of reminded me of 

this. I had it. But this is a crime scene, and this is in Alabama. 

These are two young people that overdosed on a synthetic drug 

earlier this year. So it is a different crime scene. But it looks pretty 

violent, I am sure, to their parents and their friends. 

I would also like to introduce—— 

Mr. GOHMERT. Are you offering that for the—— 

Mr. BACHUS. Yes. 

Mr. GOHMERT. All right. Without objection. 

[The information referred to follows:] 
160 
161 

Mr. BACHUS. I would also like to introduce a copy of the Attorney 

General’s memorandum to U.S. attorneys and I particularly highlighted where the cooperation is no longer included. 

But, third, I—you know, Mr. Stevenson said something that I 

think we need to at least have one panel of people, and that is 

health care approach and things that we can do in drug diversion 

treatment, addiction, addressing it both as a criminal problem and 

a health care problem. 

And I would think the U.S. attorneys would probably welcome 

that more than any one group because I have had U.S. attorneys 

and DAs that have expressed to me that they wish more was done 

on addictions and rehabilitation, because they are really the ones 

that see it every day. 

Mr. SCOTT. Mr. Chairman. 

Mr. GOHMERT. Without objection. 

[The information referred to follows:] 
162 
163 
164 
165 
166 

Mr. SCOTT. I just want to make it clear that I think we share 

the common goal of reducing drug use in America. The question is 

what the strategy will be. 

Mr. Levin and Mr. Stevenson pointed out that there is a better, 

more cost-effective way of actually reducing drug use in America. 

Others suggested the war on drugs is working. 

I think the war on drugs has been shown to be a complete failure. It has wasted money, it hasn’t reduced drugs, and there are 

more cost-effective ways of doing it. And that is what the debate 

is all about. 

Mr. GOHMERT. Thank you. You are right. 

We all agree on that, that we want to reduce the usage of drugs. 

And there have been data provided that indicate that in some ways 

it is working. 

To explain to each of you, we had anticipated having to go vote 

around 10 a.m. And so we started out under that—that is what we 

were told by the mortal gods, with a little ‘‘g,’’ from the House floor. 

While we were proceeding, we got word that the vote that we 

were told to anticipate around 10 was voice-voted—thankfully, 

some cooperation on the Floor—and that allowed us to finish without interrupting you or taking more of your time than necessary. 

So we do thank you. 

And, with that, we are adjourned. 

[Whereupon, at 10:54 a.m., the Task Force was adjourned.] 
(167) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
168 

Supplemental Material submitted by Eric Evenson, 

National Association of Assistant United States Attorneys 
169 
170 

f 
171 

f 
172 
173 
174 
175 

f 
176 
177 
178 
179 
180 
181 
182 
183 
184 
185 
186 
187 
188 
189 

Æ